Last week, the law firm Boies Schiller Flexner announced that it had hired as a lateral partner Mark Brnovich, the former Attorney General of Arizona. Brnovich, a Republican, is also an election denier.
He was against election denialism before he was for it. But when he embraced it, he did so with a vengeance. And he cared little about the damage his political calculus brought to the daily lives of fellow Arizonans, including the election workers who ably served the public.
The news of his hiring may be unremarkable to some. Business is business, of course. Firms hire where they think they can profit.
But truth is also truth. And when a firm’s brand develops pockets of truthlessness, it can’t be good for business. Or at least it shouldn’t be.
Similarly for the firm’s founder, the stellar litigator, David Boies. He built his reputation representing clients like Al Gore in the December 2000 effort to keep the vote-counting going in Florida; and successfully creating the key precedent two years before the Supreme Court’s 2015 decision establishing the right to same-sex marriage.
To welcome a partner like Brnovich is a surefire way to burn a legacy.
In February, the Washington Post ran a detailed news story reporting on Brnovich’s after-the-election deceptions. He misled Arizona voters and suppressed the truth as he ran for Senate in 2022 about his office’s investigation into Arizona’s 2020 election.
Brnovich issued deceptive statements, permitting Arizonans to infer—and election-denying politicians to gleefully contend—that his office had found substantial ballot fraud in 2020. Investigators had concluded just the opposite, but Brnovich squelched that part of the report.
Earlier this year, Arizona’s USAToday outlet published an editorial entitled, “Mark Brnovich Disgraced Arizona and its Institutions. That Shouldn’t Go Unpunished.”
Brnovich has been the subject of more than a dozen Arizona state bar disciplinary complaints for violating the rules of professional conduct.
In particular, Arizona Rule of Professional Conduct 8.4 provides: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
The comment to the rule reads as if it were written for Brnovich:
Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of attorney.
To date, however, Brnovich’s misconduct over his investigation into the 2020 election has gone unpunished in any official capacity. And now, the Boies Schiller firm has rewarded it.
That is more than shameful. It involves the firm in enabling something truly toxic. Election denialism corrodes democracy by creating uncertainty about factual truth and by fomenting an environment poised for political violence.
Such corrosion, as we are reminded by Samantha Rose, biographer of Hannah Arendt, the great 20th-century political scientist, marks the path on which totalitarianism travels.
The legal profession has a responsibility not to endorse such conduct, even if firms think it can help their bottom line.
Lawyers, Alexis de Tocqueville, the 19th century’s most important chronicler of America, wrote in Democracy in America, occupy a special, elevated role in preserving our republic:
When one visits Americans and when one studies their laws, one sees that the authority they have given to lawyers and the influence that they have allowed them to have in the government form the most powerful barrier today against the lapses of democracy.
Tocqueville wrote that what makes lawyers’ role so vital in his observation of the times, was that they had shown America that their “interest is to serve the people’s cause.”
But of course, that interest can dissolve in lawyers, as in others, when they are enticed by the prospect of power.
In our time, we’ve seen that kind of corruption via proximity to a demagogue like Donald Trump—as the guilty pleas of so many of his lawyers demonstrate. We’ve also seen it in those lawyers like Brnovich who seek public office as Republicans at a moment when Trump’s more extreme base controls the primary election selection process.
What exactly is Brnovich reported to have done?
In April 2022, Brnovich was running in Arizona’s Republican 2022 primary race for the U.S. Senate. According to the Post, he concealed “staff findings that refuted his public claims” about 2020 ballot fraud in Maricopa County.
Months before, he had opened an investigation in Maricopa County, where Phoenix is located. Then, during his run for the Senate, the Post reported, he released an “Interim Report.” It stated:
We can report that there are problematic system-wide issues that relate to early ballot handling and verification.”
Trump’s allies cheered, and some even called for the 2020 presidential results to be decertified. The inference that the 2020 Maricopa County election was stolen was possible because Brnovich had omitted this statement from his staff:
We did not uncover any criminality or fraud having been committed in this area during the 2020 general election.
And that was not the end of Brnovich’s public deception.
He failed before leaving office in January 2023 to release a September 2022 final memo entitled “Election Review Summary.” Only his successor, Arizona AG Kris Mayes, did that, setting the record straight.
That final report concluded that “no evidence of election fraud, manipulation of the election process, or any instances of organized/coordinated fraud was provided by any of the complaining parties.”
The Post story summarized the damage to democracy this way—the inaccuracies and innuendo amplified from Brnovich’s interim report “helped make Arizona an epicenter of distrust in the democratic process, eroding confidence in the 2020 vote as well as in subsequent elections.”
That is the lasting harm that this man helped create.
Note this: Initially, in December 2020, Brnovich did not yield to Trump’s pressure to help him decertify President Joe Biden’s win in Arizona. Then, in November 2022, after Brnovich lost the Republican Senate primary to Blake Masters, he called election deniers like Masters “clowns.”
Brnovich’s original resistance to Trump’s attempt to subvert the election and his (Brnovich’s) subsequent reversion to election affirmation after he was no longer running for Senate tell a sad tale—that of a man willing to promote public lies to feed his own ambition.
A law firm that rewards such destructive conduct deserves the profession’s full-throated condemnation.
